Citation NR: 9727207
Decision Date: 08/05/97 Archive Date: 08/14/97
DOCKET NO. 96-25 736 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to an increased rating for a left knee
condition, currently evaluated as 30 percent disabling.
2. Entitlement to an increased rating for chronic sinusitis,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. A. Saadat, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1968 to
February 1972.
The issue on appeal arises from an October 1995 rating
action, in which the aforementioned regional office (RO)
denied an increased rating for a left knee condition,
currently evaluated as 30 percent disabling. By the same
rating action, the RO denied an increased rating for
sinusitis, currently evaluated as 30 percent disabling. The
veteran filed a notice of disagreement in January 1996. A
statement of the case was issued in April 1996 and the
veteran perfected his appeal in May 1996.
The veteran’s representative appears to be raising the issues
of service connection for pharyngitis, tracheobronchitis,
pneumonia and allergic rhinitis as secondary to service
connected sinusitis. These issues are not inextricably
intertwined with the issues on appeal and are referred to the
RO for appropriate action. See Informal Hearing Presentation
dated June 19, 1997, and Statement of Accredited
Representative in Appealed Case dated July 9, 1996.
REMAND
The veteran essentially contends that his left knee condition
and sinusitis are more severely disabling than reflected by
the ratings assigned by the RO. The veteran specifically
notes that separate ratings should be assigned for the knee
arthritis and the scars.
In VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997), it was held
that a claimant who has arthritis and instability of the knee
may be rated separately under diagnostic codes 5003 and 5257.
Consideration should be given by the RO to this opinion.
Moreover, in Esteban v. Brown, 6 Vet.App. 259 (1994), it was
determined that separate manifestations of the same
disability may be rated individually if none of the
symptomatology for any one of the conditions is duplicative
of or overlapping the symptomatology of the other conditions.
In Esteban, the U. S. Court of Veteran’s Appeals determined
that residuals of a face injury could be rated separately
under disfigurement, painful scars and facial muscle damage.
Moreover, in DeLuca v. Brown, 8 Vet. App. 202 (1995), the
Court held that in evaluating a service-connected disability
involving a joint, the Board erred in not adequately
considering functional loss due to pain under 38 C.F.R. §
4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. The Court in DeLuca held that Diagnostic Codes
pertaining to range of motion do not subsume 38 C.F.R. § 4.40
and § 4.45, and that the rule against pyramiding set forth in
38 C.F.R. § 4.14 does not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use, including use during flare-ups. The Court remanded the
case to the Board to obtain a medical evaluation that
addressed whether pain significantly limits functional
ability during flare-ups or when the joint is used repeatedly
over time. The Court also held that the examiner should be
asked to determine whether the joint exhibits weakened
movement, excess fatigability or incoordination. If
feasible, these determinations were to be expressed in terms
of additional range of motion loss due to any pain, weakened
movement, excess fatigability or incoordination. In the
present case, the Board concludes that a new examination of
the veteran's left knee is necessary to comply with the
mandates set forth in DeLuca v. Brown, 8 Vet.App. 202 (1995).
Finally, the undersigned notes that the regulations
pertaining to rating respiratory disabilities, which include
sinusitis, were revised effective May 13, 1996. The Court
has held that where the law or regulation changes after a
claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provided otherwise or permitted the Secretary of
Veterans Affairs (Secretary) to do otherwise and the
Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308, 313
(1991). The revised rating criteria for sinusitis are as
follows:
6513 Sinusitis, maxillary, chronic.
6514 Sinusitis, sphenoid, chronic.
General Rating Formula for Sinusitis
(DC's 6510 through 6514):
Following radical surgery with
chronic osteomyelitis,
or; near constant sinusitis
characterized by headaches, pain and
tenderness of affected
sinus, and purulent discharge
or crusting after repeated
surgeries...........................
...... 50
Three or more incapacitating
episodes per year of sinusitis
requiring prolonged (lasting four
to six weeks) antibiotic treatment,
or; more than six non-
incapacitating episodes per year of
sinusitis characterized by
headaches, pain, and purulent
discharge or
crusting............................
..... 30
One or two incapacitating
episodes per year of
sinusitis requiring
prolonged (lasting four to six
weeks) antibiotic treatment, or; three
to six non-incapacitating episodes
per year of sinusitis characterized
by headaches, pain, and
purulent discharge or
crusting............................
..... 10
Detected by X-ray
only..................... 0
Note: An incapacitating episode of
sinusitis means one that requires bed
rest and treatment by a physician.
The Board concludes that a new examination of the veteran's
nose and sinuses is necessary to evaluate the veteran in
relation to the new diagnostic code.
Finally, the Board notes that the recent medical records
regarding the veteran's service-connected conditions were
received by the RO in October 1995. Additional medical
records were recently received by the Board, but no waiver of
regional office consideration is of record. Thus, the RO
should review the additional evidence. To ensure that the
veteran's claims will receive a fully informed evaluation,
clinical data taking into account the condition of the
veteran's left knee and nose, all recent treatment records
should be obtained and reviewed. 38 C.F.R. §§ 4.1, 4.2
(1996). VA has a duty to assist the veteran in the
development of facts pertaining to his claim. 38 U.S.C.A. §
5107(a) (West 1991). The Court has held that the duty to
assist includes obtaining available records which are
relevant to the claimant's appeal. The duty to assist is
neither optional nor discretionary. Littke v. Derwinski, 1
Vet.App. 90 (1990).
Under the circumstances described above, this case is
REMANDED, for the following actions:
1. The RO should obtain the names and
addresses of all medical care providers,
if any, who have treated the veteran for
his left knee condition and sinusitis,
since October 1995. After securing the
necessary releases, the RO should obtain
these records and permanently associate
them with the claims file. The RO should
request all such records, to include
those from the VA Medical Center in
Salem, Virginia, Duke University Medical
Center, Roanoke Ear, Nose and Throat
Clinic, Inc., and Boones Mill Medical
Clinic.
2. Following completion of the above
actions, the veteran should be afforded a
VA orthopedic examination to determine
the severity of his left knee condition.
It is imperative that the examiner review
the claims folder prior to the
examination
a. The examination must include
measurements of the ranges of motion
of the left knee, with normal
flexion being to 140 degrees and
normal extension being to 0 degrees.
Any knee scars should be described
in detail, and tenderness, if
present, should be noted. Any
instability of the knee should be
described as mild, moderate or
severe.
b. The examiner should be asked to
determine whether the left knee
exhibits weakened movement, excess
fatigability, or incoordination
attributable to the service-
connected disability; and, if
feasible, these determinations
should be expressed in terms of the
degree of additional range of motion
loss or favorable or unfavorable
ankylosis due to any weakened
movement, excess fatigability, or
incoordination.
c. The examiner should also be
asked to express an opinion on
whether pain could significantly
limit functional ability during
flare-ups or when the left knee is
used repeatedly over time. This
determination should also, if
feasible, be portrayed in terms of
the degree of additional range of
motion loss or favorable or
unfavorable ankylosis due to pain on
use or during flare-ups.
3. The veteran should also be afforded a
VA nose examination to determine the
severity of his sinusitis. It is
imperative that the examiner review the
claims folder prior to the examination,
and that he/she review the revised
criteria for rating sinus disabilities as
discussed above, together with the
criteria in effect prior to May 13, 1996.
The examiner should report the findings
consistent with the old criteria and the
revised regulatory criteria cited above.
4. Upon receipt of the examination
reports, the RO should review the reports
to ensure that they are adequate for
rating purposes. If an examination is
inadequate for any reason, the RO should
return the examination report to the
examining physician and request that all
questions be answered.
5. Upon completion of the above, the RO
should review the evidence and enter its
determination regarding whether increased
ratings are warranted for the veteran's
service-connected left knee condition and
chronic sinusitis. In so doing, the RO
should consider the provisions of DeLuca,
Estaban and the General Counsel Opinion
noted above. If any decision regarding
the veteran's claims is adverse to the
veteran, he and his representative should
be provided a supplemental statement of
the case, that cites all appropriate law
and regulations, and fully explains the
rationale for the RO's conclusions. The
RO should specifically cite the new
regulations and criteria regarding
sinusitis, effective May 13, 1996. The
RO should also determine whether the
prior regulations or the new regulations
are most favorable to the veteran.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is informed. The purpose of this
REMAND is to obtain additional medical information and
schedule new examinations for VA purposes. No inference
should be drawn regarding the final disposition of the claims
as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
I. S. SHERMAN
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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